7.4.

22 – Affray1
Introduction
1. Affray is a statutory offence under Crimes Act 1958 s195H.

2. Before the commencement of Crimes Act 1958 s195G, affray was a common
law offence.

3. The common law offence was defined as where the accused participates in
unlawful violence of such a kind as is calculated to cause any person of
reasonable firmness who might witness it to be terrified (Attorney General’s
Reference (No 3 of 1983) [1985] 1 All ER 501; DPP v Russell (2014) 44 VR
471).

4. Under the Crimes Act 1958, affray is committed where a person uses or
threatens unlawful violence and whose conduct would cause a person of
reasonable firmness present at the scene to be terrified.

5. The statutory offence largely had the effect of expanding the common law
offence to explicitly include threats of violence in addition to the use of
violence. The statutory provision also simplified the law regarding whether a
“person of reasonable firmness” need be present.

6. Unless stated otherwise, all statutory references are to sections of the Crimes
Act 1958.

Elements
7. For an accused to be guilty of affray, the following elements must be satisfied:

a. The accused used or threatened unlawful violence;

b. The accused’s conduct was intentional or reckless;

c. The accused’s conduct would cause a person of reasonable firmness

present at the scene to be terrified.

Used or threatened unlawful violence

8. The first element the prosecution must prove is that the accused used or
threatened unlawful violence.

9. An affray can occur in private as well as public places (s195H(4)(a); Button v

DPP [1966] AC 591, Taylor v DPP [1973] AC 964).

‘Unlawful violence’

10. The Crimes Act 1958 does not define ‘unlawful violence’ for affray. It
does, however identify “engaging in unlawful fighting with another person” as
an example of “unlawful violence” (s195H(1)).

1
This document was last updated on 17 February 2020.
 11. Common law prosecutions for affray provide further examples of unlawful
violence, including face-to-face confrontations where violence was used or
threatened (I v Director of Public Prosecutions [2002] 1 AC 285) and one or
more people shouting, struggling, threatening, waving weapons, throwing
objects and exchanging and threatening blows (R v Smith [1997] 1 Cr App R
14).

12. In the context of interpreting the term “act of violence” in Crimes Act
1958 s 3A, the Full Court explained that violence was not limited to physical
force, but included threats and menaces to induce fear or terror or to
intimidate in order to remove resistance (R v Butcher [1986] VR 43; R v Galas
(2007) 18 VR 205 at [31]; Rich v R (2014) 43 VR 558 at [258])

‘Threatened’

13. Mere possession of weapons does not amount to a threat of unlawful

violence. However, where the weapons are visible, or held or brandished in a
threatening way, this might amount to unlawful violence (I v Director of Public
Prosecutions [2002] 1 AC 285).

14. Words alone are not sufficient to provide a threat of unlawful violence
(s195H(3); R v Robinson [1993] Crim LR 581). However, a verbal threat of
unlawful violence which is accompanied by brandishing a weapon of some kind
may be sufficient (R v Dixon [1993] Crim LR 579).

Number of persons

15. Affray can be committed by one person alone, if they are using or
threatening unlawful violence in a manner that might reasonably be expected
to terrify a bystander (Taylor v DPP [1973] AC 964; Attorney General’s
Reference (No 3 of 1983) [1985] 1 All ER 501; Colosimo and Ors v Director of
Public Prosecutions [2005] NSWSC 854).

16. If two or more persons threaten unlawful violence, their conduct will be
considered together, and it is immaterial whether they used or threatened
unlawful violence simultaneously (s195H(5)).

Intentionally or recklessly
17. The second element the prosecution must prove is that the accused’s
conduct was intentional or reckless.

18. The accused must have intended to use or threaten violence or was
reckless as to whether the person's conduct involved the use of violence or
threatend violence (s195H(2)).

19. Reckless in this context means acting in the knowledge that unlawful
violence would probably result from their conduct but deciding to continue
regardless (R v Crabbe (1985) 156 CLR 464).

Would cause a person of reasonable firmness to be terrified

20. The third element the prosecution must prove is that the conduct of the
accused would cause a person of reasonable firmness present at the scene to
be terrified.
 21. This element is concerned with whether the conduct would cause a
hypothetical person of reasonable firmness to fear for their safety, rather than
a specific person at the scene (I v Director of Public Prosecutions [2002] 1 AC
285).

22. In assessing this element, the jury is concerned with the reaction of the
hypothetical reasonable person at the time of the accused’s acts of intentional
violence (R v Novakovic [2019] VSC 339, [396]).

23. It is not necessary to prove that a person of reasonable firmness was

present at the time of the alleged affray (s195H(4)(b)).

24. At common law, this element operated differently for affrays in public
and in private. For public affrays, it was unnecessary to prove the presence or
likely presence of a person of reasonable firmness (Attorney General’s
Reference (No 3 of 1983) [1985] 1 All ER 501), whereas for private affrays, the
prosecution needed to prove the actual presence of persons of reasonable
firmness (R v Taylor [1973] AC 964). Under statute, the presence of a person
of reasonable firmness is not required in any case.

25. The prosecution need only prove that the violence was capable of
terrifying a bystander of reasonable firmness (R v Sharp [1957] 1 QB 552;
Paisley v R [2012] VSCA 79). The conduct must be examined objectively.

‘Reasonable firmness’

26. The meaning of “reasonable firmness” is not defined in the Crimes Act
1958 (Vic).

27. Common law authorities often referred to a person of “reasonableness

firmness and courage” (R v Ly [2004] VSCA 45; DPP v Russell (2014) 44 VR
471) or “reasonably firm character” (R v Taylor [1973] AC 964).

‘Terrified’

28. ‘Terrified’ is a more agitated emotional state than “nervous” or

“frightened” (Paisley v R [2012] VSCA 79).

29. The circumstances of affray are varied. Affray may involve trivial rowdy
scenes which terrify for a short time or at the other end of the scale, an
extensive skirmish involving numerous casualties (R v Keys (1987) 84 Cr App
R 204).

Affray while wearing a face covering

30. Section 195H(1)(b) specifies a higher maximum penalty that applies if, at
the time of committing the offence, the accused was wearing a face covering
primarily:

(i) To conceal the person’s identity; or

(ii) To protect the person from the effects of a crowd-controlling

substance (s195H(1)(b)).
 31. While this provision has not yet been considered, it is likely that the
higher maximum penalty will only apply where the prosecution specifies that
the face-covering was present as part of its statement of the offence, and the
jury is satisfied of proof of these additional matters beyond reasonable doubt
as elements of an aggravated offence (see R v Courtie (1984) AC 463;
Kingswell v The Queen (1985) 159 CLR 264; R v Meaton (1986) 160 CLR 359;
R v Satalich (2001) 3 VR 231).

32. Cases involving face-covering therefore require proof of two additional

elements:

(a) That the accused was wearing a face covering at the time of
committing the offence; and

(b) That the accused’s purpose of wearing the face-covering was to

conceal his or her identity or to protect from the effects of a
crowd-controlling substance.

Self-defence
33. Self-defence is a complete defence to the charge of affray (Attorney
General’s Reference (No 3 of 1983) [1985] 1 All ER 501; Honeysett v The
Queen (1987) 10 NSWLR 638; R v Nguyen (1995) 36 NSWLR 397).

34. If self-defence arises, the jury will need to be instructed about that issue.
See Self-defence.